199 F. 2d 318 - Schechter v. Waters

199 F2d 318 Schechter v. Waters

199 F.2d 318

SCHECHTER,

v.

WATERS, Warden.

No. 4501.

United States Court of Appeals Tenth Circuit.

Oct. 17, 1952.

Before PHILLIPS, Chief Judge, and HUXMAN and PICKETT, Circuit Judges.

PICKETT, Circuit Judge.

1

This is an appeal from an order discharging a writ of habeas corpus and denying the appellant the relief prayed for. Petitioner, Roy Schechter, is an inmate of the Oklahoma State Penitentiary serving a fifteen year sentence which was imposed under the habitual criminal statute of Oklahoma. The basic charge in the information under which the petitioner was sentenced was that of second degree burglary. To authorize sentence under the Oklahoma habitual criminal statute it was alleged that the accused had been theretofore convicted of a felony.

2

It is contended that the Oklahoma statute violates the Constitution of the State of Oklahoma and the Fourteenth Amendment to the Constitution of the United States. In Sanders v. Waters, 10 Cir., 199 F.2d 317, we considered these same questions and decided them adversely to the contention of the petitioner and further discussion would serve no useful purpose.

3

The petitioner was tried to a jury and found guilty and no appeal was taken from the sentence. As additional grounds for granting a writ of habeas corpus, petitioner urges that he was denied the right of appeal, and that he did not receive a fair and impartial trial because the prosecution was permitted to prove the former convictions. The record shows that an appeal from the conviction was not perfected because of the failure of the petitioner to make suitable arrangements with an attorney of his own selection. This is not sufficient ground for the granting of a writ of habeas corpus. See In re Schechter, Okl. Cr. App., 231 P.2d 411, certiorari denied Schechter v. Burford, 342 U.S. 855, 72 S.Ct. 81, where the same question was presented by the petitioner. Errors committed by the trial court, such as the introduction of evidence, can only be reviewed on appeal. Habeas corpus may not be used as a substitute for appeal. In re Schechter, supra; Odell v. Hudspeth, 10 Cir., 189 F.2d 300.